Scientific literature links certain mental health issues, such as
depression, to disordered eating.Over
the past quarter century, one of the primary health policy instruments employed
in
Canada
to address mental health issues has been human rights statutes.Yet, no obesity-related human rights complaint has been specifically
decided on the prohibited ground of mental disability.

Instead, obesity-related human
rights complaints are typically framed as discrimination on the basis of
physical disability.In some cases,
women may have the additional option of filing a sexual harassment complaint.While these two distinct analytical frameworks, physical disability and
sexual harassment, have allowed some obese people to successfully claim human
rights protection, neither offers a complete solution. This
paper will explain why, and also suggests an alternative analytical approach.

Human rights statutes are meant to
combat discrimination in various areas such as employment, publication, and
public services.Broadly speaking,
they do so by enumerating prohibited grounds on which adverse distinctions may
not be drawn.

Obese people undoubtedly
experience discrimination.Research
relied upon by the American-based National Education Association, in its 1994 Report
on Size Discrimination, suggests that obese people are “highly
stigmatized” and that “the socioeconomic penalties for obesity far exceed
those for underweight”.[1]The stigma, the report continues, makes it hard for obese people to
succeed on the job or in school.[2]For instance, overweight people are less likely to attend college,
despite high scores on standardized tests.[3]They may be channeled into low-paying jobs, refused promotions, excluded
from office social events, or even terminated as a result of their weight.[4]

Other
U.S.
studies show that obese people, particularly obese women, face greater
obstacles to finding employment in the first place.[5]One study found that 16% of employers would not hire an obese woman under
any circumstances.[6]A poll conducted by Business and Legal Reports last month, which asked
“Has someone’s weight ever influenced your decision on whether to hire him
or her?”, revealed that a job applicant’s weight was an express
consideration for 25% of respondents.[7]A further 35% answered “Maybe unconsciously”.[8]One Canadian journalist put it
aptly: “[F]at is the last socially acceptable prejudice.”[9]
Certainly that appears to be the case for 60% of this group ofemployers.

In spite of the pervasive stigma
associated with obesity, no Canadian human rights statute includes “body
size” or “weight” as a prohibited ground of discrimination.Because there is no direct path to challenging weight-based
discrimination, obese people are left to make creative use of existing
prohibited grounds in human rights legislation, such as “sex” or
“disability”, as a platform from which to challenge sizeism.As a result, the structure of Canadian human rights statute has greatly
influenced how weight-based complaints are framed and, in turn, how they are
argued and decided.I will now
highlight some of the limits of these two different analytical models.

A review of Canadian human rights
jurisprudence on obesity reveals a number of employment-related disputes framed
as disability discrimination cases.[10]The majority allege improper refusal
of employment.[11]However, the most recent
obesity-related complaint from British Columbia, Sheppard
v. RFGOP Restaurant Holdings Ltd.,[12]
alleges differential treatment on the job - being the only worker out of the
workforce totalling between 150-200 treated as an independent contractor and not
as an employee.Ms. Sheppard also
alleged she has been subjected to unwelcome weight-related comments at work.[13]

Two of the successful
obesity-related complaints from British Columbia, Hamlyn
v. Cominco Ltd.[14]and Rogal
v. Dalgliesh,[15]were decided on the basis of perceived physical disability rather than
actual disability.In Hamlyn, supra,
the obese complainant was refused a temporary job because of the general
foreman’s “impression” that the complainant would be physically unable to
fit into vessels and other confined spaces in the industrial plant.[16]In Rogal,
supra, the 6’1”, 350-pound complainant applied over the phone
for an out-of-province carnival job.[17]The day after he presented himself in person, the complainant was told he
was too big and heavy for the carnival’s fast-paced lifestyle.[18]

Another interesting aspect of the Rogal
decision, supra, is the Human
Rights Tribunal’scomment that
whether obesity constitutes a disability may turn on a case-by-case review of
the medical evidence presented at hearing.In
its discussion of the submissions made by the Deputy Chief Commissioner of the
British Columbia Human Rights Commission, who was charged with the task of
raising systemic discrimination concerns, the Human Rights Tribunal stated:

There was no
evidence presented by the DCC concerning the medical definition of obesity, its
causes or its treatment. …

The DCC is,
in effect, suggesting a new test with respect to the definition of disability. The
DCC argues that, where there is widespread evidence of negative attitudes
towards people with a certain characteristic (in this case, obesity), that
characteristic should be considered a disability. However, the DCC
does not address the implications of adopting such a definition of disability.
…

Furthermore,
the position of the DCC is not clear. It is unclear whether the
position of the DCC is that obesity should, in every case, be considered a
disability, or a perceived disability, or whether the determination should be
made on a case by case basis. It may be that the determination of
whether a particular individual who is obese is disabled will be determined on
the basis of the medical evidence presented at the hearing. I
note that in Cominco Ltd. v. United
Steelworkers of America, Local 9705, [2000]
B.C.C.A.A.A. No. 62, the arbitrator concluded, based on the medical evidence
before him, that only some smokers (i.e., those who are heavily addicted) were
disabled within the meaning of the Code.

In one sense, the fact that obese
people have used human rights machinery successfully despite the absence of a
specific enumerated ground aimed at weight-discrimination is promising.Such successes highlight that obese people who suffer adverse treatment
are not without human rights remedies.Further,
the interpretation of disability to include perceived disability shows that
human rights jurisprudence can, at least on some facts, combat socially
constructed disabilities, that is, the assumption that obese people are
automatically or inherently limited because of their weight.

What is so striking about this
case, and other like it, is that employers often claim to be motivated by the
markedly increased health costs incurred for obese employees. Yet even
within the scientific community, there is debate as to the correlation between
excess weight and adverse health consequences.The study, “Excess Deaths Associated with Underweight, Overweight, and
Obesity”, led by the Centers for Disease Control senior scientist, Katherine
Flegal, and published
April 20, 2005
in the Journal
of the American Medical Association, estimated that 111,909 Americans
died of obesity in 2000.[19]The majority (73%) of those deaths occurred in people with a body mass
index (“BMI”)[20]
of 35 or higher, that is, in people with the highest levels of obesity.[21]People who were moderately overweight (BMI from 25 to 30) not only fared
better than those who were underweight (BMI less than 18.5), they were
“associated with a slight reduction in mortality relative to the normal weight
category” (BMI from 18.5 to 25).[22]The Globe
& Mail described these findings in somewhat catchier terms in its
headline: “This Just In: Fat People Live Longer.”[23]

The Flegal study has sparked a
great deal of interest because just months earlier, the CDC had estimated the
annual obesity-related death toll to be much higher at 365,000.[24]Based on the lower numbers, obesity drops from the second leading cause
of premature death in the
U.S.
to seventh, behind motor vehicle accidents and shootings.[25]The revised statistics have led some health policy analysts to comment:
“[T]he overweight-equals-early death ‘fact’ proclaimed by the public
health community is simply not true.”[26]Another commentator wrote that the findings were “a body blow to the
so-called obesity epidemic”.[27]

Perhaps one of the most effective
“anti-fat warriors” is a law professor from the
University
of
Colorado
, Paul Campos.In his recently
published book, The Obesity Myth: Why
America’s Obsession With Weight is Hazardous to Your Health, he argues
that the supposedly devastating medical and economic consequences of excess
weight are not scientific fact, but rather a product of greed and junk science.He suggests that the claims are supported in large part by the weight
loss industry, and in other cases by outright bigotry.[28]Professor Campos characterizes the problem in these terms:

…the war on fat is an outrage to
values – of equality, of tolerance, of fairness, and indeed of fundamental
decency towards those who are different.And
in the end, nothing could be easier than to win this war: all we need to do is
stop fighting it.

On of the most dramatic
illustrations of unjustified weight discrimination in the employment context
comes from a recent case involving Northern Burlington Santa Fe Railway (a
U.S.
national railway company) and an applicant for an assistant signalman position
in
Richmond
,
California
.The applicant, Josh Schmidt, was
6’2” and weighed 340 lbs.He was
very healthy and fit.He passed the
interview stage, as well as successfully completing a battery of physical and
mechanical tests.Shortly
thereafter, he received a letter from NBSF offering him the job, contingent on
several more tests.These included a
background check, drug screening, and so on.These as well he successfully completed.He then completed a medical questionnaire, and a physical.It was only after the physical that he received an e-mail from the
company saying that the job offer was being rescinded.His medical check had been very positive, except that his BMI was above
40, thereby disqualifying him due to “obesity”.[29]
Again, the employer expressed concern over the strain hiring such an employee
would place on the company’s medical costs.

Although the disability analysis
offers overweight complainants some comfort, it is problematic in several
regards.First, the discrimination
overweight people face is not limited to the stereotype that they are not
healthy or suffer physical restrictions.Second,
there is no definition of “obesity” in Canadian human rights statutes, so
the legislation’s protective ambit is unclear.Third, the disability analysis invites expert medical evidence, which may
raise the cost - as well as the privacy implications - of mounting such
complaints.Fourth,
“medicalizing” the discrimination overweight people face risks obfuscating
the substance of the complaint with unhelpful inquiries such as whether obesity
is within the complainant’s control or whether the obesity is a result of an
illness.Finally, the fact that an
overweight person who experiences discrimination based on size may be forced to
frame his or her complaint as a “disability” in order to ground the
statutory authority to bring the complaint at all is, in itself, discriminatory.Each of these shortcomings will be addressed in turn.

Overweight people are not simply
judged physically limited or less able. This is but one facet of sizeism.The evidence before the Human Rights Tribunal in Rogal,
supra, wasthat overweight people
may also be perceived to be sloppy, lazy, unattractive, as well as less
conscientious, less successful, and less industrious compared to their slimmer
counterparts.[30]

While the disability/perceived
disability analytical framework may correspond well to certain allegations of
body size discrimination, it is an awkward fit with others.For example, there is a certain logical appeal to evaluating whether the
comment that an obese worker would be “a drain on the extended health benefits
plan”[31]
constitutes employment discrimination on the prohibited ground of disability
because of the link the comment draws between the worker’s weight and her
perceived health.But what if the
unwelcome comment had been that she was “a fat slob”?There is no obvious linkage between the worker’s weight and her
physical health or abilities.Rather,
the negative stereotype directed at the worker in the second example is that her
excess weight reveals her to be sloppy or unconcerned about her appearance or,
perhaps, simply unattractive.

In sum, the disability analysis
does not accurately reflect the complete range of discriminatory conduct
overweight people face.Overweight
people, including obese people, may be mistreated not because they are disabled
or perceived to be disabled but simply because they form part of an unpopular
minority or, more simply yet, because their appearance does not correspond with
prevailing beauty norms.According
to the Réseau québécois d’action pour la santé des femmes, a
multidisciplinary body concerned with ameliorating women’s health issues, 95%
of North American women do not fit within the governing ideals of beauty,[32]
which stress not only a youthful appearance but a svelte physique.

The “fat slob” example raises
another related problem - the uncertain scope of human rights protections
offered under the disability/perceived disability analysis.This issue has two aspects.

First, where does the line fall?While human rights decisions like Hamlyn,
Rogal,and Sheppard,
suprae,hold that obesity
may constitute a disability, none define obesity.This uncertainty begs the questions that lawyers love. For
instance, can an overweight (but not obese) worker who is called a “fat
slob” by a co-worker launch a human rights complaint? It
would be difficult to mount a credible argument that a few extra pounds render a
person disabled.Further, even if
successful, such an argument risks trivializing the ground of disability.Yet, it is hard to conceive that the harm to dignity and to self-respect
caused by such an obviously derogatory comment is any less whether the person to
whom it is aimed is twenty pounds overweight or sixty.

More complicated yet, what about
individuals who are neither overweight nor obese in an absolute sense, but who
nevertheless suffer adverse consequences on the basis of weight? Consider the
example of a ballerina who is fired because she is ten pounds heavier than the
other dancers in her troop.Even
with the extra ten pounds, it is unlikely that such an athlete would be
overweight, let alone obese.The
current disability framework would not offer such a person a remedy.

The ballerina hypothetical is not
completely without a factual basis.In
2003, the BBC reported that
Russia
’s Bolshoi Ballet fired one of its most famous female dancers, Anastasia
Volochkova, for being too heavy.[33]The ballet cited concerns over the ability of its male dancers to lift
Ms. Volochkova to justify its decision.[34]According to Ms. Volochkova’s spokesperson, the 5’7” ballerina
weighed 50 kilograms or 110 pounds.[35]At that height and weight, Ms. Volochkova’s BMI is 17.2, making her
underweight under the traditional medical model.

Second, who gets to draw the line?Does the medical definition of obesity (BMI ≥30) govern or some
other specific to human rights?

The third problem with the
disability analysis is that it requires the use of expert medical evidence.Expert evidence increases the cost of any litigation.Increased cost, in turn, raises a concern about access to justice.Nobly-worded protections in a human rights statute are irrelevant if one
cannot afford to bring one’s case.

Furthermore, if the approach
suggested by the Human Rights Tribunal in Rogal
is embraced, namely, that the determination of obesity as disability may
turn on a case-by-case examination of medical evidence presented at hearing[36],
then complainants advancing weight-based complaints would likely be required to
enter their medical records into evidence.This
could result in a chilling effect on weight-based claims.Some complainants might well conclude that access to a potential human
rights remedy is not worth the intrusion into their privacy.The same privacy concerns would not arise for complainants relying on
other prohibited grounds, such as race or place of origin.The end result could be that human rights protections for weight-based
discrimination are lessened rather than strengthened.

The fourth disadvantage to
adopting a disability analysis in relation to complaints of sizeism is that the
true substance of the complaint may become lost in a line of unhelpful
tangential inquiries.One such
unhelpful inquiry is whether obesity is within a person’s control, that is,
whether it is an immutable health problem, an argument advanced, for example, in
Hamlyn.[37]Another is whether obesity is caused by an underlying illness or defect.

The issue of immutability or
permanency arose in early disability cases because human rights decision-makers
were concerned about trivializing this prohibited ground.For example, the Ontario Board of Inquiry in Ouimette
v. Lily Cups Ltd.[38]
rejected the Ontario Human Rights Commission’s argument that the flu was a
“handicap”.A significant factor
for the Board was the transitory nature of the illness.[39]

The causal link issue arises
because of the way “disability” is defined in some human rights statutes.For example, in seven Canadian jurisdictions – Alberta, Ontario, New
Brunswick, Newfoundland, Prince Edward Island, the Yukon Territory, and the
Northwest Territories – physical disability is defined as a disability or
infirmity “caused by”[40]
or “as a result of”[41]
“injury, illness or birth defect”.The
arbitrary result is that an obese person with a thyroid problem may seek a human
rights remedy while an obese person without an obvious underlying medical
problem may be turned away.

This latter situation occurred in Saskatchewan
(Human Rights Commission) v. St. Paul Lutheran Home of Melville.[42]The Saskatchewan Court of Appeal upheld the dismissal of an obese
woman’s employment-related human rights complaint because she was unable to
prove her obesity was caused by illness[43]
despite the Court’s opinion that:

¶ 10 …[W]e think it offensive for an
employer to treat one person less favourably than another, when considering them
for employment, on the ground the one is over-weight or homely or possessed of
some such personal attribute having nothing to do with that person's ability to
perform the work. Such treatment strikes at the dignity of the
person. It constitutes an insensitive and often cruel blow to one's sense of
self-worth and esteem. …

At the time the St.
Paulcomplaint
arose, the definition of “disability” in the
SaskatchewanHuman
Rights Codeincluded the necessity of a causal link to “bodily
injury, birth defect, or illness”.[44]The complainant’s evidence that her health was “excellent”
apparently worked to her detriment.

Authors Harriet Nowell-Smith and
Hugh O’Reilly observe in their article, “A Triumph of Substance Over Form in
How Discrimination Law Treats Obesity”, the requirement of proof of a causal
link “…places an enormous burden on the complainant, who must make out not
just the case of his or her experience of discrimination, but also the aetiology
of his or her obesity.”[45]

They go on to write that the
requirement of a causal link and considerations of immutability are inconsistent
with emerging Supreme Court of Canada disability jurisprudence.[46]They state that: “Somehow,” human rights legislation “must be made
to conform to the new principles articulated by the Supreme Court”.[47]

While it is true, as the authors
suggest, that the causal link obstacle that arises in the manner
“disability” is defined in certain Canadian human rights statutes may be
removed by way of legislative amendment or constitutional challenge,[48]
both solutions represent a significant challenge to the average human rights
complainant.

The final, most significant,
failing of the disability analysis in relation to weight-based human rights
complaints is that it may require people who consider themselves perfectly
healthy to acquiesce to the notion that they are flawed as a threshold matter.For example, a heavy-set man terminated from his job because of his
“sloppy” appearance has no other option under current Canadian human rights
law but to argue he is disabled in order to challenge the employment
discrimination he experienced.The
perceived disability analysis does not fit situations where an overweight person
is viewed as unattractive rather than functionally impaired.

If the point of human rights
legislation is to combat discrimination and the promulgation of negative
stereotypes, one wonders how an analytical framework which forces certain
complainants, regardless of the actual state of their health or their own
perception of their bodies, to argue that there is something seriously wrong
with them simply in order to gain access to the human rights regime represents
any sort of advance.Indeed, the
disability framework may perpetuate the negative stereotype that large-bodied
individuals are somehow flawed or unwell.From
this perspective, the disability analysis, rather than eliminating
discrimination based on body size, may actually contribute to it.

Another strategy that has been
used successfully in a handful of Canadian human rights cases is to argue that
derogatory comments regarding weight or body size is a form of sexual
harassment.For example, the Ontario
Board of Inquiry in Shaw v. Lavac and Robertson,[49]
concluded the “heavy-set” female complainant had been sexually harassed by
her co-worker who would say “waddle waddle” or “swish, swish” to imitate
the sound of nylons rubbing together when the complainant walked by him.The same conclusion was reached in Egolf
v. Watson[50]
and in Fornwald
v. Astrographic Industries Ltd.[51]Amongst other things, Ms. Egolf was called a female wrestler and a member
of the sumo wrestling team by her boss because of her physical size.[52]Ms. Fornwald, who described herself as a “large woman”, was called a
bitch, slut, whore, and behemoth at her workplace.[53]

Alleging discrimination on the
basis of “sex” avoids the problems of having to show the cause of one’s
overweight and obviates the needs for medical records or medical experts.It also allows an overweight person to challenge discriminatory conduct
without the need to assume the mantle of disability.

It should be noted that sexual
harassment has been interpreted broadly by Canadian Human Rights Tribunals to
cover unwelcome comments that, while not inherently sexual in nature, are
“exclusively genderized”.[54]For example, the respondent’s argument in Fornwald
that the insulting phrase “get off your fat ass” was gender neutral was
rejected.[55]The decision-maker wrote:

¶ 46 …[T]here was no evidence before
me that the term “fat ass” was applied to any male in the workplace as well.I am not convinced that [the co-worker] would have sent a note to a lazy
male co-worker calling him a “bitch” and asking him to get off his “fat
ass”. …I am satisfied that, at
least in the context of the Respondent’s workplace, the term took on a
gender-specific character and was applied exclusively as a sexist insult to Mrs.
Westle because she is a woman. …[56]

Although the sexual harassment
model offers many advantages over disability, it still offers only incomplete
protection.For instance, there are
no examples in which an obese man has argued sexual harassment successfully to
combat unwelcome workplace comments about weight or appearance.Further, the sexual harassment analysis would not be particularly helpful
in combating more subtle forms of weight-based discrimination, where there are
no blatantly derogatory notes or cartoons to file in evidence.

For the most part, American human
rights systems, as do their Canadian counterparts, analyze obesity and
weight-based human rights complaints as a disability issue.[57]Perceived disability cases are also possible under some state human
rights legislation.[58]

The
U.S.
disability jurisprudence regarding weight-based human rights complaints suffers
from the same failings as the Canadian cases.For example, the New York Court of Appeals concluded that the
complainants in Delta
Air Lines v.
New York
State
Div. of Human Rights[59]
failed to establish a disability claim because they could not prove that their
overweight was linked to an underlying medical condition and because weight, in
itself, did not constitute a disability.[60]The complainants, who described themselves as having “large framed
bodies” rather than “obese”, were a group of former Pan-Am flight
attendants not hired by successor Delta Airlines because they did not meet
Delta’s height/weight charts.[61]The airline maintained that its height/weight standards were
“non-discriminatory grooming standards”.[62]

The Delta case is interesting
for two reasons.First, it
highlights the causal link obstacle facing complainants in human rights
jurisdictions where “disability” is defined to require some proof of an
underlying medical problem.[63]Second, the appellate court’s finding that “weight, in and of itself,
does not constitute a disability” shows the limited scope the disability
analysis offers to those who experience weight-based discrimination.

In the more recent case of Whaley
v. Southwest Student Transp. L.C.,[64]
the obese complainant’s employment discrimination claim failed because she
could not prove that she had a disability, that is, “a physical or mental
impairment that substantially limits a major life activity”.[65]The evidence that Ms. Whaley’s obesity imposed virtually no limitations
on her led to the dismissal of her human rights complaint.[66]The ruling in Whaley, ironically, seems
to countenance weight-based employment discrimination against overweight workers
who are healthy.

A handful of American
jurisdictions, however, have taken a different tack.
Michigan
’s human rights statute, for example, recognizes both “weight” and
“height” as prohibited grounds.[67]As does Article 33 of the San
Francisco Municipal Code.[68]The city of
Santa Cruz
passed an ordinance prohibiting discrimination on the basis of “weight or
physical characteristics”.[69]Finally, the
District of Columbia
prohibits discrimination on the basis of “personal appearance”.[70]

The first case settled under the
San Francisco
law was that of Jennifer Portnick.Ms.
Portnick, who was 240 pounds, had been encouraged by her Jazzercise teacher to
audition to become a Jazzercise certified instructor.[71]However, when she applied, Jazzercise management told her that she needed
“a more fit appearance”.[72]After Ms. Portnick complained
to the San Francisco Human Rights Commission, the fitness company agreed to drop
its requirement that instructors look fit, acknowledging that “it may be
possible for people of varying weights to be fit”.[73]Ms. Portnick went on to certify through the Aerobics and Fitness
Association of America[74],
and to a consultancy with the YMCA Eastbay on that organization’s “health
at any size” theme.[75]

While the
existing prohibited grounds of “disability” and “sex” offer two
different paths to challenge weight-based discrimination in Canada, neither
offers a comprehensive, analytically coherent solution.A more satisfactory response would be to amend human rights statutes to
include a prohibited ground such as “body size” or “weight”.Such an amendment would permit human rights decision-makers to address
sizeism directly rather than through a strained, even discriminatory, analysis.

[63]
Under the New York human rights statute, “disability” is a “physical
mental or medical impairment resulting from anatomical, physiological
or neurological conditions which prevents the exercise of a normal bodily
function or is demonstrable by medically accepted clinical or laboratory
diagnostic techniques…” – See discussion in Delta
Air Lines v.
New York
State
Div. of Human Rights, 229 A.D. 2d 132 (N.Y. Sup. Ct., App. Div., 1st Dept., 1996) at page 4 (Q.L.).